Rehearing Filings in Entergy

The recent decision in Entergy Gulf States v. Summers has been the subject of much interest lately. It was given featured treatment in the Dallas Morning News article suggesting that the outcomes of the Court’s decisions tended to favor employers. It was singled out by the Legislature in the interim charges to committees. As noted in a previous posting, Entergy is the subject of a pending motion for rehearing. The parties are pitching the case as an epic conflict over the respective role of the courts and the Legislature. I’m not yet convinced — I’ll have more to say about that in a future posting. For now, I’ll share some documents that are not (yet) available on the Court’s website for those of you scoring along at home:

The amicus curiae brief filed back in February by the Texas Trial Lawyers Association. Certainly in comparison to the recent flurry of attention, this brief reads like a level-headed discussion of how to construe the statute. ((I haven’t yet reached any conclusion about the proper construction of this particular statute. My interest is in the modes of argument being used by the parties — which tactics worked, which didn’t, and why.))

The Respondent’s motion for rehearing.Â This document doesn’t seem to advance any new legal arguments, instead relying on the force of the press reaction to suggest that the Court reconsider. It ends with an admonition from Deuteronomy about the role of public officials.

An amicus curiae brief from four state legislators that has gotten somepressnotice. You’ll notice that this is not a very amicable amicus filing. After two very quick pages discussing the Legislature’s intent in the first person (“we intended…”), ((I have not verified whether these members were in the Texas Legislature when the relevant bills were passed. I expect, from experience reviewing similar amicus filings in the past, that some were and some weren’t.)) the brief moves on to a fairly aggressive five-page discussion of how the Court’s opinion ignores the legislature’s intent and is thus null and void. ((The particular rule of statutory construction being discussed — the rule in Texas describing how to treat recodified statutes — will be discussed more in a later post. In short, the legislators seem to be arguing for the view that, if the statute had originally said simply “a person has a claim” and was then changed to say “a person has no claim,” that the plain language of that change in the statute would yield to a separate proviso of the enactment that characterized the change as nonsubstantive. If I understand the argument correctly, they are saying that the words the Court should be construing are not the ones enacted in 1993 but instead the ones from 1989, and thus the printed, codified statute books are themselves incorrect. I’m not sure that’s what they are advocating, but, like I said — worthy of a follow-up post later.))

Excerpts from an amicus curiae pro se ((That’s a mouthful of Latin!)) brief filed today by Steve Bresnen, who describes himself as a registered lobbyist with 27 years of experience who is not representing any particular client in this matter. His brief was rather voluminous compared to the other fairly short filings in this case — 42 pages — and I did not get a chance to copy it all. I’ve attached the opening portion.